EEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII/Sex/BFOQ/Caregiver

November 22, 2013

Dear __:

This responds to your inquiry about whether it is permissible under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq., for a company that provides in-home personal caregiving services to assign only women to female clients, while referring both men and women to male clients. If such a blanket policy would be unlawful, you also ask whether the employer may implement a narrower policy of limiting women-only referrals to those female clients who refuse to sign a waiver agreeing to care by either a man or a woman. Your letter provides a detailed legal argument to support these practices. Because the Equal Employment Opportunity Commission (EEOC or Commission) may not assess the legality of particular employment practices outside the context of investigating specific charges of discrimination, this letter is an informal discussion of the legal issues you raise.

Title VII prohibits a covered employer from “limit[ing], segregat[ing], or classify[ing]” employees based on sex, 42 U.S.C. § 2000e-2(a)(2), and also prohibits a covered employment agency from “fail[ing] or refus[ing] to refer for employment, . . . any individual because of . . . sex.” 42 U.S.C. § 2000e-2(b). Thus, the policy or practice of referring only women to female clients normally will violate Title VII unless a defense or exception applies. Your letter contends that this policy or practice rises to the level of a “bona fide occupational qualification” (BFOQ) under Title VII. The statute provides that a BFOQ exists if sex-based hiring, referring, or classifying of workers is “reasonably necessary to the normal operation of that particular business or enterprise[.]” 42 U.S.C. § 2000e-2(e). The EEOC interprets the BFOQ exception narrowly, 29 C.F.R. § 1604.2(a)(1), as does the Supreme Court. SeeInternational Union. UAW v. Johnson Controls, 499 U.S. 187, 201 (1991) (“[t]he BFOQ defense is written narrowly, and this Court has read it narrowly.”). Employers cannot establish a BFOQ with “assumptions of the comparative employment characteristics” of each sex, “stereotyped characterizations of the sexes,” or customer preferences. 29 C.F.R. § 1604.2(a)(1)(i)-(iii).

Your letter maintains that sex is a BFOQ for personal caregivers for privacy and safety reasons. As to privacy, you emphasize that the essence of personal caregiving is assisting with normally private activities such as bathing, toileting, or dressing. As to safety, you assert that there is a “heightened potential” for sexual abuse of female clients by male caregivers, particularly in the isolated home care setting.

Privacy Rationale for a BFOQ

The EEOC has long recognized the possibility of a sex-based BFOQ premised on the privacy interests of individuals who are institutionalized or infirm. See EEOC, Compliance Manual § 625, Bona Fide Occupational Qualifications, at §§625.7(b), 625.9 (1982); Informal Discussion Letter, EEOC Office of Legal Counsel, “Title VII BFOQ” (March 5, 2002), http://www.eeoc.gov/eeoc/foia/letters/2002/titlevii_bfoq.html. As noted in the 2002 letter, some courts have found a sex-based BFOQ in order to protect the bodily privacy interests of patients or customers from members of the opposite sex. See, e.g., Fesel v. Masonic Home of Del., 447 F. Supp. 1346 (D. Del. 1978) (sex is BFOQ for aide position at a nursing home servicing only female residents due to privacy implications of the aide’s responsibilities to help with toileting, bathing, and dressing). In these cases, EEOC and courts first scrutinize the extent to which the job requires workers to come into physical contact with their clients, particularly while the clients are undressed or exposed. Please note that this rationale has been applied to the privacy interests of both women and men. Everson v. Michigan Dept. of Corr., 391 F.3d 737, 756-57 (6th Cir. 2004) (rejecting male plaintiff’s sex discrimination claim in part based on privacy interests of female prison inmates); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 133 (3d Cir. 1996) (female plaintiff’s sex discrimination claim rejected in part because of male patient privacy interests in not being observed unclothed by members of the opposite sex).

Safety Rationale for a BFOQ

Some courts additionally have found a sex-based BFOQ in order to protect the personal safety of third parties. The safety rationale “is limited to instances in which sex . . . actually interferes with the employee’s ability to perform the job.” Johnson Controls, Inc., 499 U.S. at 204 (1991).

Employers claiming a safety-based BFOQ must be careful not to rely on stereotypical assumptions or fears about the inherent danger or proclivities of one gender. For example, the employer does not satisfy the safety rationale based on a vague notion that having men care for women creates a “heightened potential” of assault. See Breiner v. Nevada Dept. of Corr., 610 F.3d 1202, 1212 (9th Cir. 2010) (holding that an assumption that male supervisors would tolerate sexual abuse of female inmates, would be more likely to abuse female inmates, and could not understand the behavior of female inmates as well as a female lieutenant, did not establish a BFOQ); Fesel, 447 F. Supp. at 1352 (female patient fears of attack by male aides “are undoubtedly attributable to . . . sexual stereotyping of the past,” and “may be characterized as ‘customer preference’” that could not form the basis of a BFOQ). If, on the other hand, the employer has concrete information to justify the safety concern, a court is more likely to agree that a BFOQ exists. Compare Everson v. Michigan Dept. of Corr., 391 F.3d 737, 754 (6th Cir. 2004) (BFOQ was “reasonably calculated” where concerns over male prison guards abusing female inmates were based on past allegations and statistics of proven abuse cases in the same prison), withHenry v. Milwaukee County, 593 F.3d 573 (2008) (limitation on the number of opposite-sex staff allowed in a juvenile detention center was not justified by a BFOQ where there was no history or indication of any staff-on-inmate sexual assault, nor any evidence of a problem with false accusations against staff).

Additional Elements to Establish a BFOQ

Satisfying either the privacy or safety rationale is only the first step in justifying a sex-based BFOQ.(1) The second step requires a showing that “the essence of the business operation would be undermined if the business eliminated its discriminatory policy.” Dothard v. Rawlinson, 433 U.S. 321 (1977). Finally, the third step considers whether there are other reasonable alternatives to protect the privacy of clients and/or satisfy their safety concerns without using sex-based referrals.

Use of Waivers in Assigning Caregivers by Sex

Your letter also inquires whether, as an alternative to demonstrating a sex-based BFOQ for assignments to all female clients, an employer may limit women-only referrals to those female clients who decline to execute a written waiver and thereby indicate a preference for women caregivers. We would analyze such a policy in light of the BFOQ analysis summarized above, because customer preference does not itself support a BFOQ and is not an exception to Title VII.

The waiver policy likely would apply to the third element of a BFOQ, i.e., determining if there is a reasonable alternative to making sex-based job assignments. For example, if the employer satisfied the first two elements of a privacy BFOQ, the analysis would conclude by determining whether making sex-based assignments only to clients who fail to provide a client-executed waiver would protect each client’s personal privacy. If so, then categorically barring men from serving as caregivers for female clients would not qualify for a privacy BFOQ, because the waiver policy would offer a reasonable alternative. If the employer had also (or alternatively) established the first two elements of a safety BFOQ, the use of waivers again would need to be analyzed with respect to whether safety concerns are addressed by the waiver policy.

We hope this information is helpful to you. If you have further questions, please contact me or Senior Attorney Advisor Raymond Peeler at 202-663-4640. Please note that this letter is an informal discussion of your questions and does not constitute an official interpretation or opinion of the Commission pursuant to 29 C.F.R. § 1601.91.

Sincerely,

Carol R. Miaskoff
Assistant Legal Counsel
Title VII/ADEA/EPA Division

FOOTNOTES:

1 This letter only discusses the privacy and safety justifications for a BFOQ raised in your incoming letter.